To Reduce Opioid Treatment Program Legal Liability, Practice Good Medicine— And Document It

August 14, 2015

If your patient tests positive for illicit drugs while in treatment at your opioid treatment program (OTP), you need to take steps—and document those steps—to avert that patient’s unhealthy behavior. If you don’t, and the patient gets in an accident, and someone is injured, you are liable—even if the injured person is the patient himself or herself. That’s the lesson that lawyers James Bello and Noel Dumas, partners with Morrison Mahoney in Manchester, New Hampshire, presented at the meeting of the American Association for the Treatment of Opioid Dependence (AATOD) this spring.

We caught up with Mr. Bello to learn more about the attorneys’ presentation at AATOD, and what OTPs can do to prevent this from happening.

The attorneys presented a mock trial based on a motor vehicle liability case the lawyers defended in New Hampshire. They were representing a large for-profit OTP, which they did not identify out of consideration for their client.

The case involved a young woman with a long history of drug abuse who was receiving methadone maintenance treatment at the OTP. After taking her dose one day, when she was driving home, she flipped her car and as a result of the accident, was paralyzed from the waist down. She tested positive for cocaine and benzodiazepines.

She sued the OTP. During her treatment, she had used cocaine and benzodiazepines—not constantly, but sporadically—and this was the main point made by the patient-plaintiff.

“Her methadone dose was stabilized, but she continued to test positive on urine screens for cocaine and benzodiazepines,” Mr. Bello told AT Forum. “The plaintiff’s case was focused on their contention that not enough was done” to help her. “Her claim was that the clinic didn’t do enough about positive drug tests, that the clinic had a policy, and they were supposed to try changing counselors, or perhaps making a referral to inpatient care,” he said. “None of that was done, which is what the case focused on.”

The evidence against the OTP was “compelling,” said Mr. Bello. Under New Hampshire state law, the plaintiff received only 17 percent of what was required in terms of counseling hours. “In many jurisdictions, violation of a state law is considered to be per se negligence,” he said.

This case ended up not going to trial, but rather settling prior to trial for a confidential amount of money. The plaintiff remains paralyzed from the waist down. She stopped using drugs and no longer goes to an OTP.

Patient’s Responsibility?

“Our primary defense was this was the patient’s responsibility,” said Mr. Bello. She was the one who chose to use benzodiazepines and cocaine.

Discharging the patient would not be a solution, he said. National guidelines recommend against discharging patients from the OTP for illicit drug use. This would not lessen the danger from driving under the influence—the patient would no longer be in treatment even for opioid dependence. And there was an opportunity for change. “Although she continued to have positive drug screens from time to time, she was coming to counseling,” said Mr. Bello.

The problem wasn’t necessarily that the counseling wasn’t done. The problem was that it wasn’t documented. “It would have been a much better case for the clinic if the clinic had documented counseling hours,” he said.

“We had another problem in our case because the center was using boilerplate treatment plans,” said Mr. Bello. Treatment plans were being photocopied and different patient names appended to them.

Had the patient been on methadone alone, even if the counseling had not been up to par, the case would have been much more defensible, said Mr. Bello. “There’s a good amount of research showing that someone who is on a stable dose of methadone is not impaired.” However, there is no such research for someone illicitly using benzodiazepines or cocaine. In the New Hampshire case, he recalled, the post-accident toxicology tests showed impairment by benzodiazepines and cocaine.

No Impairment Documented

The nurse who gave the patient her dose that day was deposed by the plaintiff’s counsel—had to answer questions under oath—and as is usual, if there is no documentation that there was impairment, that’s sufficient to prove that the clinic did not think she was impaired when dosed, said Mr. Bello. “It’s documentation by exception.” If there were any sign that a patient is impaired, the nurse would document that, and definitely would not provide the dose of methadone. Mr. Bello added that patients who illicitly use benzodiazepines time their use so that they do not seem impaired when they show up at the clinic for their methadone.

Case law for patients getting pain medications is very similar to that relating to patients in OTPs, said Mr. Bello. In fact, from a provider liability standpoint, the physician providing pain medications might have a higher duty of care, he said. Likewise, similar issues apply to physician offices providing buprenorphine for patients addicted to opioids.

Special Liability for OTPs?

“I think the special liability for OTPs is that you know these people are coming to you for treatment for opioid addiction,” said Mr. Bello. “Not only are they using opioids but probably other drugs too.”

And what really concerns defense attorneys, especially in rural areas, is the fact the patients must spend so much time on the road getting to and from their OTP.

“There aren’t that many clinics,” he said. “You know your patients are driving long distances to get their dose and then driving home. That’s why it’s all the more important that you dot all your I’s and cross all your T’s.”

There are some patients who are going to get in trouble no matter how careful an OTP is. But if you have good documentation, you can defend yourself when that happens. In the case of this patient, the accident might have happened even if documentation had been there. But the OTP’s liability would have been greatly lessened. And it’s possible that had the treatment program paid better attention to her, she would not have had the accident under the influence of benzodiazepines and cocaine.

As a result of the case, the OTP changed its practices, said Mr. Bello.

Morrison Mahoney is licensed in Connecticut, Rhode Island, New York, New Jersey, Massachusetts, and New Hampshire. The company serves as national counsel for various providers, so if there is an accident in another jurisdiction, it contacts local attorneys, said Mr. Bello.

Below are some legal pointers Mr. Bello recommends for OTPs:

Know your state law and regulations

Make sure your staff knows the state regulations

State regulations will define the standard of care

Company policies and procedures will define standard of care

At a minimum, plaintiff will hold you to your own regulations

Document the length of each counseling session

Document the substance of the counseling session

When you talk about a medical legal case, documentation is key

If it’s not documented, it didn’t happen

If illicit drug use continues, discuss it, and document what’s being done to effect change.